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445 Phil. 784

SECOND DIVISION

[ G.R. No. 138093, February 19, 2003 ]

PEOPLE OF THE PHILIPPINES AND IGNACIO SALMINGO, PETITIONERS, VS. EDWIN D. VELEZ (CITY MAYOR), ELI G. ALMINAZA (CITY ACCOUNTANT), ARTURO J. SIASON (ACTING CITY TREASURER), ELADIO S. MONDRAGON, JR. (CITY ENGINEER), ALL OF SILAY CITY, RESPONDENTS.

D E C I S I O N

CALLEJO, SR., J.:

Before the Court is a petition for review on certiorari of the Resolution[1] of the Fourth Division of the Sandiganbayan (SB) dated January 9, 1997 in Criminal Case No. 24307[2] granting the Motion to Withdraw Information filed by the Office of the Ombudsman and the Resolution[3] of the SB denying the Motion for Reconsideration of petitioner Ignacio J. Salmingo of said resolution.

The Antecedent Proceedings

Petitioner Ignacio Salmingo, a former member of the Sangguniang Panlalawigan of Silay City, filed an affidavit-criminal complaint with the Office of the Ombudsman (for Visayas) charging respondents with:
  1. Installing and operating a rock crusher without the required Environmental Clearance Certificate (ECC) from the DENR;

  2. Incurring an overdraft against appropriation in the amount of P3.991M, in violation of Section 158 of the Government Accounting and Auditing Manual;

  3. Entering into a transaction that is grossly or manifestly disadvantageous to Silay City, in violation of Sec. 3 (g) of RA No. 3019;

  4. Malversation of P2.528M in violation of Art. 217 of the RPC; and

  5. Technical Malversation of at least P11.648M in violation of Sec. 305 (a) of the Local Government Code and Art. 220 of the RPC.[4]
Salmingo alleged, inter alia, in his affidavit-criminal complaint that:
x x x the respondent City Mayor, Edwin D. Velez, on January 05, 1995, requested the Sangguniang Panlungsod (SP) of Silay City for authority to enter into a loan agreement with the Land Bank of the Philippines (LBP) for the purpose of purchasing a rock crusher (Annex ‘B’). The SP of Silay City then passed Resolution No. 563, giving such authority to Mayor Velez to negotiate for a P10M loan from the LBP and to mortgage the City’s patrimonial properties, among others. The complainant pointed out that said SP Resolution No. 563 did not specify that the loan proceeds will be used to procure a rock crusher, or for any other purpose. That the SP of Silay City also did not officially approve any appropriation ordinance authorizing that any proposed LBP loan, or any other fund of the Silay City local government, shall be used to purchase a rock crusher or related equipment. But sometime in February 1995, allegedly even before final approval and release of proceeds of the LBP loan, and without any SP appropriation, Mayor Velez accepted the delivery of rock crusher and related heavy equipments (sic) from the supplier, YY & Company of Mandaue City, and during the same month caused the payment to the same supplier of the following sums:

QTY. DESCRIPTION AMOUNT
     
One (1) unit Komatsu Payloader P   1,650,000.00
One (1) unit Fuso Dump Truck P   1,438,000.00
One (1) unit Caterpillar Bulldozer P   3,445,000.00
One (1) set Used Rock Crusher P   5,115,000.00
    P 11,648,000.00
    ============

The releases of the LBP loan allegedly came later, starting sometime in March, 1995 (6.19M), then in April, 1995 (2.56M), and finally in March, 1996 (1.25M), for a total of P10M.

The foregoing disbursements for the rock crusher project allegedly caused the Silay City local government to incur an overdraft of P3.991M under the item of Capital Outlay – Office of the City Mayor, as of June 30, 1995. And as of even date, Mayor Velez allegedly had already received a total of P8.719M from the LBP, but had only used a total of P6.191M thereof in payment of the junk rock crusher and related equipments (sic), and, thus, had been unable to account for the P2.528M balance of the LBP loan proceeds. As a result of said overdraft and embezzled or unaccounted amount, Silay City allegedly experienced extreme fund shortage and had been on deficit spending operation since after May 8, 1995 elections.

Respondent Mayor Velez allegedly caused the installation of the rock crusher without the Environmental Clearance Certificate from the DENR, had not applied for said ECC up to the time of filing of this complaint, and had not caused the conduct of any Environmental Impact Assessment. And during the inauguration of the rock crusher plant on June 12, 1995, it allegedly did not operate because it was not only a used or second hand unit but also actually a junk, and its major components did not match or were not synchronized with each other. That even after it underwent major repairs and was re-inaugurated on February 29, 1996, it still did not perform as expected and again grounded to a halt even before the inaugural music died down. That while it has yet to operate at a commercially viable level, Silay City has been burdened with interest payment for the LBP loan amounting to at least P250,000.00 per quarter starting in the 3rd quarter of 1995.[5]
After preliminary investigation, the Graft Investigator prepared a Resolution dated July 28, 1997 stating that there was probable cause against all respondents except the City Budget Officer for violation of Section 3(g) of Republic Act 3019, and recommending the filing of an Information against the malefactors for said crime and for the dismissal of the other charges against all of them:
WHEREFORE, above premises considered, the undersigned respectfully recommends the FILING of INFORMATION for violation of Section 3, paragraph (g), of Republic Act No. 3019, as amended, against respondents City Mayor EDWIN D. VELEZ, City Engineer ELADIO S. MONDRAGON, JR., Acting City Treasurer ARTURO J. SIASON, and City Accountant ELI G. ALMINAZA before the proper court. Further recommending, however, the DISMISSAL of the other criminal charges against said respondents.

Recommending furthermore the DISMISSAL of the complaint against respondent City Budget Officer SALVADOR G. ASCALON, JR.[6]
The Resolution was approved by the Ombudsman on October 17, 1997.[7]

On October 22, 1997, the corresponding Information was filed against said respondents with the SB and raffled to the fourth division thereof. The Information reads:
That on or about the 6th day of February, 1995, and for sometime prior and subsequent thereto, at Silay City, Province of Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, public officers, having been duly elected, appointed and qualified to such public positions above-mentioned, in such capacity and committing the offense in relation to office, taking advantage of their public positions, conniving and confederating together and mutually helping with each other, with deliberate intent, with intent of gain and to defraud, did then and there willfully, unlawfully and feloniously enter into a transaction for and in behalf of the City of Silay, Negros Occidental, with YY and Company, Cebu City relative to the purchase of a rock crusher and related heavy equipment, consisting of the following:
One (1) unit Payloader
(aux-equipt. For
Rock Crusher) .................................................
P1,640,000.00
One (1) unit Bulldozer
(Caterpillar) ...................................................
3,445,000.00
One (1) unit Dump Truck,
10 Wheeler Fuso, left
hand drive ......................................................
1,438,000.00
Component for Rock Crusher
(80/100 cu.m.)
(Jaw Crusher, Cone Crusher,
4-set Belt Conveyor and
Vibrating Screen) ...........................................
5,115,000.00
 
P11,638,000.00
and consequently paid or caused the payment of said equipment to YY & Company in the total amount of P11,638,000.00, Philippine Currency, which transaction was manifestly and grossly disadvantageous to the government, particularly the City of Silay, as the prices of said equipment exceeded the prevailing market prices and these suffered from several defects ranging from leaking air compressor, assembly and governor throttle, lack of plow bolts, defective oil seal at bucket cylinder, defective waking light, plate light, front signal light, rear stop light, dented mudguard, rotten cab siding, rotten wood black/spacer of dump body, capacity not in accordance with purchase order, some equipment components installed were second hand or of different brand and no parts and maintenance book were supplied as stipulated in the purchase order, and others, which defects caused the rock crusher plant of Silay City to be not operational for some period of time, to the damage and prejudice of the government, particularly the City of Silay.

CONTRARY TO LAW.[8]
The SB found probable cause for the issuance of warrants for the arrest of respondents and accordingly, on November 7, 1997, arrest warrants were issued against them. Respondents forthwith posted bail. On the same day, respondents filed with the Office of the Ombudsman a Motion for Reconsideration of its resolution dated July 28, 1997.[9] Special Prosecutor III Luz L. Quiñones-Marcos prepared an Order dated June 29, 1998 for the approval of the Office of the Ombudsman for the denial of the motion of respondents. On November 27, 1997, the Office of the Ombudsman issued an order denying the motion for reconsideration filed by respondents with the ratiocination that the filing of an Information before the SB precluded said Office from still taking cognizance of said motion.[10]

Undaunted, respondents filed with the SB on November 24, 1997 a “Joint Motion for Reconsideration/Reinvestigation” with respect to the findings of the Office of the Ombudsman in its Resolution dated July 28, 1997.[11] Salmingo opposed the said motion and contended that it was in effect and for all intents and purposes a second motion for reconsideration of the resolution of the Office of the Ombudsman dated July 28, 1997. He averred that the filing of a second motion for reconsideration was proscribed by Section 27 of Republic Act 6770 and Administrative Order No. 07 issued by the Office of the Ombudsman implementing said law.

On December 1, 1997, the SB issued an order granting the respondents’ motion for reconsideration/reinvestigation and directing the Office of the Special Prosecutor to re-evaluate the evidence adduced by the parties and to take the appropriate action in connection therewith. The SB declared in said order that the motion of respondents was not objected to by the prosecution, and that the parties had even agreed that the said motion be treated as a motion for reconsideration under Section 27 of Republic Act 6770.

On June 29, 1998, Special Prosecutor Officer III Marcos prepared an order for approval of the Office of the Ombudsman denying the motion for reconsideration/reinvestigation of respondents. In his memorandum to the Office of the Ombudsman dated July 30, 1998, Special Prosecutor Leonardo P. Tamayo agreed with the findings of his subordinate that there was a prima facie case against respondents; he, however, recommended to the Ombudsman some modifications thereto, namely, that the Information in Criminal Case No. 24307 be withdrawn and another Information for violation of Section 3(e) of R.A. 3019 be filed only against City Engineer Eladio S. Mondragon, Jr. The Special Prosecutor found that there was no sufficient evidence to conclude that the equipment (rock crusher) was over-priced, the price having been determined in a public bidding which appears to have been regularly conducted, and that respondents Edwin D. Velez, Arturo J. Siason, Eli G. Alinaga as Mayor, City Treasurer and Accountant, respectively, of Silay City, had knowledge of the defects of the rock-crusher purchased before or at the time payment was made. The Special Prosecutor stated that City Engineer Eladio S. Mondragon, Jr., by reason of his official function and technical knowledge, had the duty to inspect the rock-crusher components and auxillary equipment before and after the same was delivered and accepted, in order to avoid any injury or damage to the city; and his failure to exercise that degree of diligence expected of him amounted to gross negligence, for which he must, to the exclusion of the other accused (respondents), be answerable.[12] The Office of the Ombudsman concurred with the modifications suggested by the Special Prosecutor and approved the order prepared by the Special Prosecutor Officer with modification on July 31, 1998.[13] Consequently, on August 20, 1998, Prosecutor Marcos filed with the SB a Motion to Withdraw Information for violation of Section 3(g) filed against respondents, without prejudice to the filing of an Information for the same crime against City Engineer Eladio S. Mondragon, Jr. only. Salmingo opposed the said motion on two grounds:
a)
The Motion for Reconsideration/Reinvestigation dated November 17, 1997 filed by the accused, through counsel, is not warranted under Administrative Order No. 07 which is the Rules of Procedure of the Office of the Ombudsman; and
 

b)
The evidence on record sufficiently show the existence of conspiracy of all the accused in the commission of the crime of violation of Section 3 (g) of Republic Act No. 3019.[14]
Salmingo contended that the SB did not order the Office of the Ombudsman to reinvestigate the case or to reconsider its July 28, 1997 Resolution but merely to take appropriate action. Hence, he claims, the Office of the Ombudsman abused its discretion when it set aside its July 28, 1998 Resolution. He further alleged that as the party who charged respondent for various offenses, he was the offended party, citing Section 9, Republic Act 3019. The Special Prosecutor and respondents, for their part, argued that Salmingo had no personality to oppose the said motion because the crime charged does not involve civil liability and that the prosecutor had direction and control of the prosecution of the case in the SB.

On January 9, 1999, the SB issued a resolution granting the Motion to Withdraw Information of the prosecution and ordering the dismissal of the case, without prejudice to the filing of another Information against City Engineer Eladio S. Mondragon, Jr. for violation of Section 3(e) of Republic Act No. 3019:
WHEREFORE, the prosecution’s Motion to Withdraw Information, dated August 20, 1998 is hereby granted. As therein prayed for, the Information in the above-entitled case is hereby ordered withdrawn, without prejudice to the filing of another Information as against City Engineer Eladio S. Mondragon, Jr. only for violation of Section 3(e) of R.A. 3019, as amended.

Perforce, the above entitled criminal case is hereby dismissed. The bailbonds of the accused are hereby cancelled.[15]
The SB ratiocinated that the Office of the Ombudsman through the Office of the Special Prosecutor had control of the prosecution and the right to move for the withdrawal of the Information and for the consequent dismissal of the case, conformably with Section 5 of Rule 110 of the 1985 Rules of Criminal Procedure, as amended. The SB further ratiocinated that Salmingo had no legal personality to intervene in the case and oppose the motion of the prosecution as he was not the offended party. The SB ruled that the prosecution had the authority to move for the withdrawal of the Information citing the decision of this Court in Crespo v. Mogul, et al.[16] It further stated that Salmingo did not suffer any actual damage or injury in connection with the transactions subject of the case. The SB overruled the claim of Salmingo that pursuant to Section 9 of R.A. 3019, he suffered actual damages caused by the crime committed by respondents, thus giving him the legal personality to intervene in the aforementioned case.[17]

Dissatisfied, Salmingo filed a motion for reconsideration of said resolution. On February 16, 1999, the SB issued a resolution denying said motion. The SB ruled that Salmingo had no legal personality to intervene in Criminal Case No. 24307 because as shown by the Information, the alleged aggrieved party was the City of Silay and not Salmingo.[18]

In his petition at bar, Salmingo contends that the SB violated Section 27 of Republic Act 6770 when it treated the Joint Motion for Reconsideration/Reinvestigation filed by respondents as a Motion for Reconsideration under Section 27 of Republic Act 6770 simply because the prosecution and respondents had agreed to treat said motion merely as a motion for reconsideration under said law and not a second motion for reconsideration of the July 28, 1997 Resolution of the Office of the Ombudsman. Salmingo asserts that the agreement of the prosecution and respondents for the Office of the Ombudsman to conduct a reinvestigation of Criminal Case No. 24307 is in violation of the law and hence is null and void. Even if he was not the offended party in the criminal case and hence had no personality to participate in the proceedings before the SB, he contends that said court should not have acted arbitrarily and granted the motion for reconsideration/reinvestigation of respondents as well as the motion to withdraw the Information filed by the prosecution. By so doing, the SB abdicated its duty to enforce the law. The Office of the Ombudsman committed a grave abuse of its discretion when it opposed the memorandum of the Special Prosecutor dated July 30, 1998 and found no probable cause against respondents and moved for the withdrawal of the Information and for the filing of another against the City Engineer only.

Respondents, for their part, assert that Salmingo is not the proper party to file the petition at bar. The SB had the authority to grant the motion for reconsideration/reinvestigation of respondents as well as the withdrawal of the Information and the dismissal of the case citing the decision of this Court in Crespo v. Mogul, et al.[19] The Office of the Ombudsman, for its part, avers that the People of the Philippines did not file the petition at bar and hence Salmingo should not have impleaded the People of the Philippines as party petitioner. Instead of impleading the People of the Philippines as a party petitioner, Salmingo should have impleaded the People of the Philippines as party respondent. Moreover, the Office of the Ombudsman contends that Salmingo has no legal personality to file the petition at bar as he was not the offended party in Criminal Case No. 24307 before the SB. Besides, Section 27 of Republic Act 6770 allows the filing with the Office of the Ombudsman of a motion for reconsideration but not a motion for reinvestigation. The said Office further asserts that the Joint Motion for Reconsideration/Reinvestigation of respondents was in fact a motion for a reinvestigation of the case and hence, there was a need to convert or treat the said motion as a motion for reconsideration of the July 28, 1997 resolution of the Office of the Ombudsman. The Office of the Ombudsman likewise argues that the SB is not proscribed from granting a motion for reconsideration of the July 28, 1997 Resolution of the Ombudsman and in fact, under Section 7(b) of Administrative Order No. 07 of the Office of the Ombudsman implementing Republic Act 6770, the SB may grant a motion for reconsideration or reinvestigation of respondents.

The issues for the resolution of the Court are synthesized as follows: (a) whether Salmingo is the proper party to file the present petition; and (b) whether the SB violated Section 27 of Republic Act 6770 when it treated the “Joint Motion for Reconsideration/ Reinvestigation” of respondents as a motion for reconsideration under Section 27 of Republic Act 6770 and when it granted the “Motion to Withdraw Information” filed by the Office of the Ombudsman and dismissed Criminal Case No. 24307.

The petition is denied.

On the first issue, the Court agrees with the contention of the respondent Office of the Ombudsman that Salmingo is not the proper party as petitioner in this case. The governing rule is Section 1, Rule 45 of the 1997 Rules of Civil Procedure, as amended, which reads:
SECTION 1. Filing of petition with Supreme Court. – A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.
The Court has previously held that the “party” referred to in the rule is the original party in the main case aggrieved by the order or decision in the main case. Hence, only the aggrieved original party in the main case is the only proper party as petitioner. One who has not been an original party in the main case has no personality to file a petition under said rule:
The grant of affirmative relief based on the first assigned error would really redound to the benefit of an entity which was not made a party in the main case and which did not seek to intervene therein. Therefore, it has no personality to seek a review of the public respondent’s Amended Decision under Rule 45 of the Rules of Court. Only the original parties to the main case may do so. x x x[20]
The Court notes that Salmingo was not a party in the main case. While it is true that he initiated the criminal complaint with the Office of the Ombudsman against respondents for various offenses, however, under the Information filed with the SB, the parties are the People of the Philippines as plaintiff and the respondents as the accused. The private complainant is the City of Silay while Salmingo is merely a witness for the plaintiff.

The private complainant in a criminal case before the SB is also a proper party to file a petition under Rule 45 of the 1997 Rules of Civil Procedure, as amended, but only on the civil aspect of the case. It must be noted that Salmingo was not the private complainant in the main case. As gleaned from the Information, Silay City was the party which suffered damage as a consequence of the wrongful acts of the malefactors and hence is the private complainant in the main case.[21]

Salmingo’s inclusion in the caption of his petition of the People of the Philippines as a party petitioner is patently unauthorized. The Court believes that it is a futile attempt in compliance with Section 1, Rule 45 of the 1997 Rules of Civil Procedure as amended.

This Court could have denied the petition in light of its foregoing disquisitions. However, this Court opted to resolve the second issue which it believes is substantial. Contrary to the contention of Salmingo, the SB did not violate Section 27 of Republic Act 6770 when it treated the Motion for Reconsideration/Reinvestigation of respondents as a motion for reconsideration under Section 27 of Republic Act 6770 which reads:
SEC. 27. Effectivity and Finality of Decisions. – (1) All provisionary orders of the Office of the Ombudsman are immediately effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds:

(1) New evidence has been discovered which materially affects the order, directive or decision;

(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for reconsideration shall be resolved within three (3) days from filing: Provided, That only one motion for reconsideration shall be entertained.
The records show that the Office of the Ombudsman approved the resolution prepared by the Graft Investigator finding probable cause against respondents for violation of Section 3(e) of Republic Act 3019 on October 17, 1997. Consequently, respondents had five days from notice of said resolution within which to file their motion for reconsideration. Even assuming that respondents received the aforesaid resolution on October 17, 1997, they had until October 22, 1997 within which to file their motion for reconsideration. However, the Office of the Ombudsman filed the Information against respondents with the SB on October 22, 1997, the last day for respondents to file their motion for reconsideration. Patently, the Office of the Ombudsman filed the Information prematurely, thus depriving respondents of their right to file their motion for reconsideration as provided for in Section 27 of Republic Act 6770. The Office of the Ombudsman must have realized its faus pax when respondents filed with the SB their Joint Motion for Reconsideration/Reinvestigation and thus agreed to treat the Motion for Reconsideration/Reinvestigation filed by respondents with the SB as a motion for reconsideration under Section 27 of Republic Act 6770. By its agreement, the Office of the Ombudsman merely corrected itself when it curtly denied the motion for reconsideration/reinvestigation filed by respondents with the Office of the Ombudsman after receiving the resolution of the Office of the Ombudsman dated July 28, 1997 on the sole ground that the Information had already been filed with the SB.

The Office of the Ombudsman is vested under the 1987 Constitution with investigatory and prosecutorial powers. Said office, through the Special Prosecutor, has direct control over the prosecution of the case. When it filed the Motion to Withdraw Information on its finding that there was no probable cause against respondents, except the City Engineer, the Office of the Ombudsman merely exercised its investigatory and prosecutorial powers. Case law holds that this Court is loathe to interfere with the exercise by the Ombudsman of its powers:
x x x At this point we reiterate that ‘x x x [t]his is an exercise of the Ombudsman’s powers based upon constitutional mandate and the courts should not interfere in such exercise. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts will be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.’[22]
While the Office of the Ombudsman has the discretion to determine whether an Information should be withdrawn and a criminal case should be dismissed, and to move for the withdrawal of such Information or dismissal of a criminal case, the final disposition of the said motion and of the case is addressed to the sound discretion of the SB subject only to the caveat that the action of the SB must not impair the substantial rights of the accused and of the right of the People to due process of law.[23] In this case, the Court holds that the SB acted in the exercise of its sound judicial discretion in granting the motion of respondents and ordering the dismissal of Criminal Case No. 24307.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The Resolutions of the Sandiganbayan, Annexes “A” and “B” of the Petition, are AFFIRMED.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumbing, and Austria-Martinez, JJ., concur.



[1] Penned by Justice Sabino L. de Leon, Jr. (who later became a member of this Court) and Justices Rodolfo G. Palattao and Narciso S. Nario, concurring; Annex “A,” Petition.

[2] People v. Velez, et al., Criminal Case No. 24307.

[3] Annex “B,” Petition.

[4] Rollo, p. 25.

[5] Id. at 25-27.

[6] Id. at 32.

[7] Id.

[8] Id. at 15-16.

[9] Id. at 17.

[10] Id. at 17-18.

[11] Id. at 18.

[12] Id. at 39.

[13] Id. at 40.

[14] Id. at 17.

[15] Id. at 22-23.

[16] 151 SCRA 462 (1987).

[17] Rollo, pp. 20-22.

[18] Id. at 24.

[19] 151 SCRA 462 (1987).

[20] Arcilla v. Court of Appeals, et al., 215 SCRA 120 (1992).

[21] Banal v. Tadeo, Jr., 156 SCRA 325 (1997).

[22] Domondon v. Sandiganbayan, et al., 328 SCRA 292 (2000).

[23] Galvez v. Court of Appeals, et al., 237 SCRA 685 (1995).

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